Owens v. Social Security Administration, Commissioner of

Filing 15

MEMORANDUM AND ORDER: The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. Signed by U.S. District Senior Judge Sam A. Crow on 5/9/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LARRY OWENS JR.,
Plaintiff,
vs.

Case No. 16-1208-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).
1

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
1

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
2

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
3

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On November 12, 2014, administrative law judge (ALJ)

William H. Rima issued his decision (R. at 65-76).

Plaintiff

alleges that he has been disabled since November 26, 2012 (R. at
65).

Plaintiff is insured for disability insurance benefits
4

through December 31, 2016 (R. at 67).

At step one, the ALJ

found that plaintiff did not engage in substantial gainful
activity since the alleged onset date (R. at 67).

At step two,

the ALJ found that plaintiff had a severe combination of
impairments (R. at 67).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 69).

After determining plaintiff’s RFC (R. at 70), the

ALJ found at step four that plaintiff is unable to perform any
past relevant work (R. at 74).

At step five, the ALJ found that

plaintiff could perform other jobs that exist in significant
numbers in the national economy (R. at 74-75).

Therefore, the

ALJ concluded that plaintiff was not disabled (R. at 76).
III.

Did the ALJ err in finding that plaintiff’s mental

impairments could not be medically determinable or were nonsevere, and in failing to consider his mental impairments when
assessing plaintiff’s RFC?
An impairment must result from anatomical, physiological,
or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques, and
must be established by medical evidence consisting of signs,
symptoms, and laboratory findings.
416.908.

20 C.F.R. §§ 404.1508,

Evidence to establish a medically determinable

impairment must come from acceptable medical sources.
§§ 404.1513(a), 416.913(a).
5

20 C.F.R.

The burden of proof at step two is on the plaintiff.

See

Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993)(the
claimant bears the burden of proof through step four of the
analysis).

A claimant’s showing at step two that he or she has

a severe impairment has been described as “de minimis.”

Hawkins

v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997); see Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988)(“de minimis showing of
medical severity”).

A claimant need only be able to show at

this level that the impairment would have more than a minimal
effect on his or her ability to do basic work activities.2
Williams, 844 F.2d at 751.

However, the claimant must show more

than the mere presence of a condition or ailment.

If the

medical severity of a claimant’s impairments is so slight that
the impairments could not interfere with or have a serious
impact on the claimant’s ability to do basic work activities,
the impairments do not prevent the claimant from engaging in
substantial work activity.

Thus, at step two, the ALJ looks at

the claimant’s impairment or combination of impairments only and
determines the impact the impairment would have on his or her
ability to work.
Cir. 1997).

Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th

A claimant must provide medical evidence that he or

2

Basic work activities are “abilities and aptitudes necessary to do most jobs,” 20 C.F.R. § 404.1521(b)[416.921(b)],
including “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and
speaking; understanding, carrying out, and remembering simple instructions; use of judgment, responding
appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work
setting.” Social Security Ruling 85-28, 1985 WL 56856 at *3; Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.
2004).
6

she had an impairment and how severe it was during the time the
claimant alleges they were disabled.

20 C.F.R. § 404.1512(c),

§ 416.912(c).
SSR 85-28 (Medical impairments that are not severe) states
the following:
A claim may be denied at step two only if
the evidence shows that the individual’s
impairments, when considered in combination,
are not medically severe, i.e., do not have
more than a minimal effect on the person’s
physical or mental ability(ies) to perform
basic work activities. If such a finding is
not clearly established by medical evidence,
however, adjudication must continue through
the sequential evaluation process.
...........
Great care should be exercised in applying
the not severe impairment concept. If an
adjudicator is unable to determine clearly
the effect of an impairment or combination
of impairments on the individual's ability
to do basic work activities, the sequential
evaluation process should not end with the
not severe evaluation step. Rather, it
should be continued.
1985 WL 56856 at *3, 4 (emphasis added).3
The step two determination is based on medical factors
alone.

Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.

2004); Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir.
2003); Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
The step two requirement is generally considered a de minimis
3

SSR rulings are binding on an ALJ. 20 C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530 n.9, 110 S.
Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
7

screening device to dispose of groundless claims; thus,
reasonable doubts on severity are to be resolved in favor of the
claimant.

Field v. Astrue, Case No. 06-4126-SAC, 2007 WL

2176031 at *4 (D. Kan. June 19, 2007); Brant v. Barnhart, 506
Fed. Supp.2d 476, 482 (D. Kan. 2007); Samuel v. Barnhart, 295 F.
Supp.2d 926, 952 (E.D. Wis. 2003); see Lee v. Barnhart, 117 Fed.
Appx. 674, 676-677 (10th Cir. Dec. 8, 2004)(Step two is designed
to weed out at an early stage those individuals who cannot
possibly meet the statutory definition of disability.

While the

mere presence of a condition or ailment is not enough to get the
claimant past step two, a claimant need only make “de minimus”
showing of impairment to move on to further steps in the
analysis); Church v. Shalala, 1994 WL 139015 at *2 (10th Cir.
April 19, 1994)(citing to SSR 85-28, the court stated that step
two is an administrative convenience to screen out claims that
are totally groundless solely from a medical standpoint); Newell
v. Commissioner of Social Security, 347 F.3d 541, 547 (3rd Cir.
2003)(reasonable doubts on severity are to be resolved in favor
of the claimant).
At step two, the ALJ found that:
in the absence of laboratory or clinical
findings or medical observations validating
symptoms the existence of any mental
impairment cannot be medically determined or
is non-severe.

8

(R. at 69, emphasis added).

The ALJ imposed no mental

limitations in plaintiff’s RFC.
The ALJ gave substantial weight to the opinion of Dr.
Nystrom (R. at 68), who conducted a mental status examination of
plaintiff on February 29, 2012 (R. at 379-381).

Dr. Nystrom

stated that plaintiff’s responses were attempts to emulate
psychotic or schizophrenic responses, and that he was largely
noncompliant with some bizarre responses included (R. at 380).
Dr. Nystrom concluded that there was no psychological disorder
identified that would prevent plaintiff from being able to
understand and remember simple instructions; plaintiff was
capable of sustained concentration, persistence, and keeping
pace in a work setting.

Plaintiff should be able to maintain

appropriate social interactions with coworkers, supervisors, and
the general public (R. at 381).
On January 23, 2013, Dr. Wilkinson, a state agency
psychologist, reviewed the record and concluded that plaintiff’s
mental impairments were not severe (R. at 129-130).

On March

22, 2013, Dr. Stern, another state agency psychologist,
concluded that plaintiff’s impairments do not limit his mental
ability to do basic work activities (R. at 147-148).

Dr. Stern

indicated that he saw a diagnostic page from Dr. Schell with
diagnoses of multiple mental impairments and indications of
depression, irritability and hallucinations, but Dr. Stern
9

stated that Dr. Schell’s observations are not supported by other
evidence in the file (R. at 148).

The ALJ gave substantial

weight to the opinions of Dr. Nystrom, Dr. Wilkinson and Dr.
Stern (R. at 68-69).
On March 17, 2012, Dr. Schicker performed a consultative
evaluation on the plaintiff.

In his report, he noted that

plaintiff reports a history of schizophrenia with both visual
and auditory hallucinations (R. at 385, 387).

Dr. Henderson

performed a consultative evaluation on the plaintiff on January
10, 2013 (R. at 391-394).

He stated:

Although the patient does not report this
today, old charts show both visual and
auditory hallucinations. Suicidal ideations
in the past. He has been on medical
management.
(R. at 394).

This was not mentioned by the ALJ in his decision.

Plaintiff has been in mental health treatment with Dr.
Schell, a psychologist, from February 9, 2013 through February
11, 2014.

Dr. Schell saw plaintiff during that period on 24

occasions (R. at 402-411, 465-549).

He gave his initial

diagnostic impressions on February 9 and 24, 2013 (R. at 397398, 400-401).

On September 26, 2013, Dr. Schell filled out a

medical statement that plaintiff had bipolar disorder with
psychotic features (R. at 415-416).

On March 24, 2014, Dr.

Schell filled out a medical source statement-mental, opining
that plaintiff was markedly limited in 18 out of 20 categories.
10

Dr. Schell indicated that this statement sets forth his
professional opinion of plaintiff’s limitations, and further
indicates that he excluded from consideration all limitations
which Dr. Schell believed resulted from plaintiff’s conscious
malingering of symptoms (R. at 581-582).

Dr. Schell also set

forth his diagnosis of plaintiff (R. at 583-584), which was
consistent with his initial diagnosis in February 2013 (R. at
397-398).
The ALJ stated that the other evidence in the file does not
support Dr. Schell’s findings and opinions (R. at 69).

However,

the ALJ failed to mention the report from Dr. Henderson on
January 10, 2013 that, although plaintiff did not report it, old
charts show both visual and auditory hallucinations, and
suicidal ideations in the past (R. at 394).

Furthermore, the

treatment records of Dr. Schell over a one year period (24
sessions) consistently state that plaintiff’s symptoms are
interfering with his ability to function on a daily basis in
activities of daily living, socializing, work, school,
communications and cognitive thinking (R. at 407, 469, 472, 476,
481, 485, 487, 497, 501, 505, 508, 512, 516, 521, 526, 533, 536,
541, 545, 549).

On December 17, 2013, Dr. Schell gave plaintiff

the Saint Louis University Mental Status Examination and the
Mini-Mental State Examination.

Test results showed that

plaintiff fell within the dementia range and suggested strong
11

evidence of dementia (R. at 482).

These test results were not

mentioned by the ALJ.
The ALJ stated that “overall,” it appears that the findings
of Dr. Schell are based on plaintiff’s “subjective reports.”
The ALJ noted that the medical evidence shows that plaintiff is
not fully credible in his allegations of disabling impairments,
nor is the assessment of Dr. Schell consistent with other
medical evidence.

For these reasons, the ALJ accorded little

weight to the opinions of Dr. Schell (R. at 69).
The ALJ discounted the opinions of Dr. Schell because he
believed that those opinions were based on plaintiff’s
subjective reports.

the ALJ instead gave greater weight to Dr.

Nystrom, who saw plaintiff one year before plaintiff began
treatment with Dr. Schell; the ALJ also gave greater weight to
the opinions of Dr. Wilkinson and Dr. Stern, who both relied on
the report from Dr. Nystrom.

Dr. Wilkinson did not have before

him the treatment records of Dr. Schell.

Dr. Stern only had

before him the initial diagnoses of Dr. Schell in February 2013
(R. at 148); he did not have before him the treatment records
from 23 subsequent treatment sessions by Dr. Schell.
In the case of Langley v. Barnhart, 373 F.3d 1116, 1121
(10th Cir. 2004), the court held:
The ALJ also improperly rejected Dr.
Hjortsvang's opinion based upon his own
speculative conclusion that the report was
12

based only on claimant's subjective
complaints and was “an act of courtesy to a
patient.” Id. The ALJ had no legal nor
evidentiary basis for either of these
findings. Nothing in Dr. Hjortsvang's
reports indicates he relied only on
claimant's subjective complaints or that his
report was merely an act of courtesy. “In
choosing to reject the treating physician's
assessment, an ALJ may not make speculative
inferences from medical reports and may
reject a treating physician's opinion
outright only on the basis of contradictory
medical evidence and not due to his or her
own credibility judgments, speculation or
lay opinion.” McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir.2002) (quotation
omitted; emphasis in original). And this
court “held years ago that an ALJ's
assertion that a family doctor naturally
advocates his patient's cause is not a good
reason to reject his opinion as a treating
physician.” Id. at 1253.

Subsequently, in the case of Victory v. Barnhart, 121 Fed. Appx.
819 (10th Cir. Feb. 4, 2005), the court held:
The ALJ's finding that Dr. Covington's
opinion was based on claimant's own
subjective report of her symptoms
impermissibly rests on his speculative,
unsupported assumption. See Langley, 373
F.3d at 1121 (holding that ALJ may not
reject a treating physician's opinion based
on speculation). We find no support in the
record for the ALJ's conclusion. Nothing in
Dr. Covington's report indicates that he
based his opinion on claimant's subjective
complaints, and the ALJ's finding ignores
all of Dr. Covington's examinations, medical
tests, and reports. Indeed, the ALJ's
discussion of Dr. Covington omits entirely
his March 22, 2001 examination and report.
His April 3, 2001 statement might well have
been based on his recent first-hand
13

examination and observation of claimant
during this examination, performed less than
two weeks earlier, rather than on claimant's
subjective complaints, as the ALJ
speculated. See Morales v. Apfel, 225 F.3d
310, 317 (3d Cir.2000) (noting that the
treating physician's opinion may “reflect
expert judgment based on a continuing
observation of the patient's condition over
a prolonged period of time”).
121 Fed. Appx. at 823-824.
As Langley makes clear, the ALJ must have a legal or
evidentiary basis for asserting that a medical source report was
based only on plaintiff’s subjective complaints.

However, the

ALJ did not cite to a legal or evidentiary basis for his
assertion that the opinions of Dr. Schell were based on
plaintiff’s subjective reports.

In fact, Dr. Schell saw

plaintiff on 24 occasions from February 9, 2013 through February
11, 2014, and provided extensive treatment records.

As the

court stated in Victory, Dr. Schell’s assessment might well have
been based on his first-hand examination and observation of the
plaintiff during the 24 treatment sessions, rather than relying
on plaintiff’s subjective reports, as the ALJ speculated.4
Furthermore, the practice of psychology is necessarily
dependent, at least in part, on a patient’s subjective
statements.

Thomas v. Barnhart, 147 Fed. Appx. 755, 759-760

(10th Cir. Sept. 2, 2005); Miranda v. Barnhart, 205 Fed. Appx.
4

Although this issue was raised by plaintiff in his brief (Doc. 11 at 19-20); defendant failed to address this issue in
their brief.
14

638, 641 (10th Cir. Aug. 11, 2005).

A psychological opinion may

rest either on observed signs and symptoms or on psychological
tests.

Langley v. Barnhart, 373 F.3d 1116, 1122 (10th Cir.

2004); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004).

The ALJ cannot reject a psychologist’s opinion for the

reason that it was based on a claimant’s responses because such
rejection impermissibly substitutes the ALJ’s judgment for that
of the psychologist.

It is not the ALJ’s prerogative to

substitute his own judgment for that of the psychologist.
Thomas, 147 Fed. Appx. at 760; Miranda, 205 Fed. Appx. at 641;
see McCune v. Colvin, Case No. 13-1207-SAC (D. Kan. Sept. 23,
2014; Doc. 28 at 9-12); Reeder v. Colvin, Case No. 13-1201-SAC
(D. Kan. Sept. 11, 2014; Doc. 22 at 11-13); Glaze v. Colvin,
Case No. 13-2129-SAC (D. Kan. Aug. 6, 2014; Doc. 15 at 8-11);
Price v. Colvin, Case No. 13-1052-SAC (D. Kan. March 11, 2014;
Doc. 15 at 14-15); Stamps v. Astrue, Case No. 12-1100-SAC (D.
Kan. Feb. 20, 2013; Doc. 18 at 9-11).
The ALJ relied on mental assessment information that
largely predated the treatment by Dr. Schell (24 sessions over a
1 year period).5

The opinions to which the ALJ gave significant

weight were rendered prior to, and therefore could not account
for, most of the evidence in the administrative record regarding

5

As noted above, the assessments by Dr. Nystrom and Dr. Williamson predated the treatment records and
evaluation of Dr. Schell, and Dr. Stern only had before him the initial assessment and diagnosis by Dr. Schell on
February 9, 2013, and not the subsequent 23 treatment sessions.
15

plaintiff’s mental health, including any deterioration in his
mental health that may have occurred.

Kreger v. Social Security

Administration, 2015 WL 3514888 at *8-9 (D. Kan. June 4, 2015).
In addition, the opinions of physicians, psychologists, or
psychiatrists who have seen a claimant over a period of time for
purposes of treatment are given more weight than the views of
consulting physicians or those who only review the medical
records and never examine the claimant.

The opinion of an

examining physician is generally entitled to less weight than
that of a treating physician, and the opinion of an agency
physician who has never seen the claimant is entitled to the
least weight of all.
(10th Cir. 2004).

Robinson v. Barnhart, 366 F.3d 1078, 1084

When a treating source opinion is inconsistent

with the other medical evidence, the ALJ’s task is to examine
the other medical source’s reports to see if they outweigh the
treating source’s reports, not the other way around.

Treating

source opinions are given particular weight because of their
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations.

If an ALJ intends to rely on a nontreating

physician or examiner’s opinion, he must explain the weight he
is giving to it.
Cir. 2004).

Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th

The ALJ must provide a legally sufficient
16

explanation for rejecting the opinion of treating medical
sources in favor of non-examining or consulting medical sources.
Robinson, 366 F.3d at 1084.
On the facts of this case, the court finds that the ALJ did
not provide a legally sufficient explanation for rejecting the
opinions of plaintiff’s treatment provider, Dr. Schell.

The ALJ

relied on a one-time only examination assessment and two
assessments that only reviewed the record and which did not have
before them most, if not all, of the treatment records and
assessments from Dr. Schell.

Furthermore, as noted above, the

ALJ lacked a legal or evidentiary basis for asserting that the
findings of Dr. Schell are based on plaintiff’s subjective
complaints.
Defendant’s brief did note that the ALJ relied on the fact
that plaintiff had no significant mental health treatment
(apparently prior to the treatment by Dr. Schell), including
medication, to support his finding that plaintiff did not have a
medically determinable mental impairment (Doc. 14 at 9).
However, in the case of Grotendorst v. Astrue, 370 Fed. Appx.
879, 882-883 (10th Cir. March 22, 2010), the ALJ found that
claimant’s anxiety and depression were not severe because there
was no objective medical evidence that she had been treated for
anxiety or depression.

The court held as follows regarding a

step two evaluation:
17

the regulations set out exactly how an ALJ
is to determine severity, and consideration
of the amount of treatment received by a
claimant does not play a role in that
determination. This is because the lack of
treatment for an impairment does not
necessarily mean that the impairment does
not exist or impose functional limitations.
Further, attempting to require treatment as
a precondition for disability would clearly
undermine the use of consultative
examinations. Thus, the ALJ failed to follow
the regulations in reaching her
determination that Ms. Grotendorst's mental
limitations were not severe at step two of
the sequential evaluation.
370 Fed. Appx. at 883 (emphasis added).
The ALJ clearly erred by relying on plaintiff’s lack of
treatment.

Furthermore, as noted above, the ALJ erred because

he lacked a legal or evidentiary basis for asserting that Dr.
Schell based his findings on plaintiff’s subjective reports.

In

addition, Dr. Schell treated plaintiff for a full year after the
mental health assessments relied on by the ALJ.

The ALJ should

have also considered the portion of Dr. Henderson’s report on
the history of schizophrenia.

On remand, the ALJ should discuss

that portion of Dr. Henderson’s report, who stated in January
2013 that old charts show both visual and auditory
hallucinations, and suicidal ideation in the past (R. at 394).
Finally, when determining whether there is a medically
determinable impairment, and whether it is severe, the ALJ
failed to follow the case law that clearly indicates that step

18

two requires only a “de minimis” showing of the existence or
severity of an impairment.

Step two is designed to screen out

claims that are totally groundless from a medical viewpoint.
Reasonable doubts on the existence or severity of an impairment
are to be resolved in favor of the claimant.

By finding that

the existence of a mental impairment cannot even be medically
determined, it is clear that the ALJ gave no consideration to
the impact, if any, of plaintiff’s mental impairments on his RFC
findings.
In light of the treatment records of Dr. Schell, which
largely post-date the assessments relied on by the ALJ, the fact
that the ALJ lacked a legal or evidentiary basis for asserting
that the findings of Dr. Schell are based on plaintiff’s
subjective complaints, the general case law that generally
accords greater weight to the opinions of treatment providers,
the fact that only a “de minimis” showing be made of the
existence and severity of an impairment at step two, and the
ALJ’s erroneous reliance on the lack of treatment, the court
finds that substantial evidence does not support the ALJ’s
statement that the existence of a mental impairment cannot be
medically determined or is non-severe.

On remand, the ALJ will

need to properly evaluate the evidence relating to plaintiff’s
mental impairments.

19

IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 9th day of May 2017, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

20